Nelson v. Review Board, Employment SEC. Div.

CONCURRING OPINION I agree with the result reached by the majority in this case. However, I cannot agree with the reasoning by which they reach their conclusion. As I construe the majority opinion, it holds the award must be reversed because the evidence does not sustain the findings made by the Review Board. This necessarily implies that if the evidence was sufficient to sustain the findings made, the award would have to be affirmed. (I am of the opinion there is sufficient evidence in the record to sustain the findings the Board made.) I do not believe this is the law in this state. I believe § 52-1538b, Burns' 1933 (1947 Supp.) relied on in the majority opinion must be construed with § 52-1539a, Burns' 1933 (1947 Supp.), which provides as follows:

"FAILURE WITHOUT GOOD CAUSE TO APPLY FOR OR ACCEPT SUITABLE WORK — DETERMINATION OF SUITABLE WORK. — An individual shall be ineligible for waiting period or benefit rights: If the director or the division finds that being totally, partially, or part-totally unemployed, and after having complied with the requirements of sections 1401, 1402 and 1403 (§§ 52-1538, 52-1538a, 52-1538b) hereof, he has failed without good cause, either to apply for available suitable work when so directed by the director, the deputy, or an authorized representative of the state or the United States Employment Service, or to accept suitable work when found for and offered to him by the director, the deputy, an authorized representative of the state or the United States Employment Service, or by an employing unit, or to return to his customary self-employment (if any) when so directed by the director or the deputy. Such ineligibility shall continue for the week in which such failure occurred and for the five (5) next following weeks in addition to the waiting period."

In the case of Muncie Foundry Division of Borg-WarnerCorporation v. Review Board of Unemployment Security Divisionet al. (1943), 114 Ind. App. 475, 51 N.E.2d 891 (Transfer denied), this Court, in considering the question of availability for work, said (p. 482):

"But he (the employee) is disqualified for failure to apply for available, suitable work only when he has been directed to do so by the director or the deputy of the Indiana Employment Security Division." (My emphasis).

In the instant case there is no finding that appellant failed to apply for work or to accept work when offered in accord with the provisions of § 52-1539a, supra. Nor is there any evidence in the record to support such a finding. Therefore, the award must be reversed. In the interests of justice, I feel the Board should be directed to hear further evidence on this question if either of the parties so desire.

Hamilton, J. — Concurs.

NOTE. — Reported in 82 N.E.2d 523.